The pill and the law

Health-care law sets up constitutional conflict

With the election settled and a decisive answer given as to whether the Affordable Care Act will be implemented, the question remains as to how division about the measure's contraception provisions will be resolved. From the fairness and access perspective, the answer is obvious. From the religious-freedom point of view, it is less so.

The question over which employers must provide, through their health-care plans, FDA-approved contraception at no cost to employees is somewhat murky because the Obama administration rightly included exemptions to churches and some religious organizations. That exemption, though, prompted some religiously affiliated organizations - such as hospitals and universities - to object to the provision, as well, claiming that contraception ran afoul of the religious beliefs of the organization, which employees may not share.

In August, the Obama administration punted, giving itself one year to refine the rules. That murkiness opened the door to push-back even farther, though. Several for-profit, privately owned businesses now have taken umbrage at the contraception provision and have sued to exempt themselves, claiming the owners' religious rights are being infringed.

Equal protection under the law is running full tilt into religious freedom - both of which are constitutionally granted rights. There is some precedent for extending First Amendment protection to corporations. Under that argument, who is the Obama administration to tell a corporation that "its" religious beliefs must be set aside?

The answer, it seems, is found with consistency. While Citizens United did grant corporations the right to "express" themselves through unlimited campaign contributions, that decision did not, on its face, deny anyone else the right to express himself as a result. By extending religious freedom to corporations at the expense of the religious beliefs of that company's employees, religion turns into a zero sum game where the values of those in power supersede those of individuals whose livelihood - and health-care coverage - depends on their employers. Such a system undermines freedom of religion in dangerous ways.

As the Center for American Progress and more than one judge has pointed out, the exemptions and resultant gray area that the Obama administration is creating serve to bolster claims that there is a religious-freedom argument to be made. "By not applying the contraception policy across the board - "grandfathering" some health plans out of it, exempting some religious groups, giving others a reprieve for a year - the government is actually hurting its own legal arguments, and all those exceptions do on some level acknowledge the legitimacy of the religious argument," said a recent CAP report on the issue.

It is a topic of great concern to women, employers and religious organizations.. It seems, though, that personal religious beliefs should be kept separate from the health-care offerings made to others, especially when the health-care in question is so central to quality of life.